veyed the premises in 1901, there would be a presumption that the possession thus shown continued and continues under Adams and those claiming under him. Lazarus v. Phelps, 156 U. S. 205, 15 Sup. Ct. 271, 39 L. Ed. 397. In the case of Reynolds v. Crawfordsville Bank, supra, among other things, it was held that the complainant, being vested with a clear equitable title to the premises in controversy, was entitled under the Indiana statute to a decree. The provisions of this statute are practically the same as those of the North Carolina statute. The case of Wehrman v. Conklin, 155 U. S. 324-325, 15 Sup. Ct. 129, 39 L. Ed. 167, was where a suit was instituted to quiet title under the Iowa statute. a statute substantially the same as the North Carolina statute. It was held:

"It will be observed that this statute enlarges the jurisdiction of the courts of equity in the following particulars: First. It does not require the plaintiff to have been annoyed or threatened by repeated actions of ejectment. Second., It dispenses with the necessity of his title being previously established at law. Third. A bill may be filed by a party having an equitable as well as a legal title. Fourth. In some states it is not even necessary that the plaintiff should be in possession of the land at the time of the filing of the bill. These statutes have generally been held to be within the constitutional power of the Legislature."

Also, on pages 324, 325 of 155 U. S., and page 133 of 15 Sup. Ct. (39 L. Ed. 167), in discussing the extent to which the federal courts have gone in the enforcement of equitable rights conferred by state statutes, it is said:

"Another step in the direction was taken in Reynolds v. Crawfordsville Bank, 112 U. S. 405, 5 Sup. Ct. 213, 28 L. Ed. 733, in which a bill was sustained on an equitable title, although it would appear from a report of the case that such fitle was not fortified by actual possession."

At the final hearing it appeared that the plaintiff at the time of the commencement of the suit had only an equitable title to the property in dispute; the conveyance under which it claimed being without seals, but in other respects sufficient. However, before the hearing was concluded, the conveyance was amended. re-probated, and re-registered, so as to make it a perfect conveyance of the legal title to the complainant, and again offered in evidence, and admitted as such, and in addition the complainant obtained from its vendor another deed, which it had probated and registered, and which was admitted in evidence, conveying the land to the complainant. Whereupon the defendants offered at formal written motion to dismiss the suit on the ground that the complainant at the time of the institution of the suit did not have a legal title to the land. This motion was denied. The deed as originally filed was not under seal, but it purported upon its face to be a perfect conveyance in all respects, except the scrolls at the ends of the names of the signers. While not a deed in the technical sense of the term, at the same time it had the effect to convey a perfect equitable title. In the case of Rutherford v. Green, 37 N. C. 126, it is said:

But if he could at law, it is the settled principle of equity that a valid contract for the conveyance of land is, in itself, an equitable conveyance, whereby the person to whom it is given is regarded in equity as a complete owner, and is entitled at any time to call for a legal conveyance, whereby he may become legal owner also. *

Phillips v. Davis, 69 N. C. 119, is to the same effect.

There was no objection to the introduction of any of the deeds, except the one herein referred to, and in that instance the objection was based upon the ground that it was not properly registered. However, defendants' counsel reserved the right to object to the effect of the same on account of the defects in the deeds originally introduced. This defect was remedied by a re-registration during the hearing. Hudson v. Jordan, 108 N. C. 12, 12 S. E. 1029; Cawfield v. Owens, 129 N. C. 286, 40 S. E. 62. Although the complainant would have been entitled. to a decree upon his equitable title, as shown by the deed introduced in the first instance, to which no seals were attached, at the same time, having introduced a perfect legal title to the lands in controversy during the pendency of the suit, this presents the case of one being possessed with an equitable title at the commencement of the suit and with a perfect legal title at the final hearing, which, in either view of the case, would give complainant a standing in court. The chain of title. was complete in all respects down to Adams, and there was an admission in the answer to the effect that Adams and wife conveyed the property in controversy to the complainant. This admission on the part of the defendants practically takes this matter out of the realm of controversy. However, the Circuit Court of Appeals (Sixth Circuit), in the case of Reeves v. N. C. Land & Timber Co., 141 Fed. 821, 72 C. C. A. 287, considered this, among other questions, in a well-prepared opinion delivered by Lurton, Circuit Judge, in which, among other things, it is said:

"Finally, it is said that a complainant cannot acquire a title pending his suit, and bring it forward by supplemental bill. That is not this case. The complainants had an imperfect, but inchoate, title when they brought this suit. They simply perfected the existing title.

It is also insisted that the complainant has an adequate and complete remedy at law. This contention cannot be maintained. The bill shows that the complainant was in the actual possession of the premises in controversy at the time suit was instituted, that it was and still is in the actual possession, and, therefore, cannot maintain an action at law in this court. While it is insisted that the complainant might have a remedy at law in the state court, at the same time, under the circumstances, this court will not refuse to entertain jurisdiction in cases like the one at bar. The court, in the case of United States Life Ins. Co. v. Cable, 98 Fed. 761, 39 C. C. A. 264, among other things said:

"In the federal courts it is well settled that the court will not turn a suitor in equity over to a remedy at law in the state court, but only on the law side of the federal court."

This court, having jurisdiction of the subject-matter as well as the parties, will proceed to hear and determine the questions involved,. either in equity or on the law side of the docket, according to the pleadings and evidence.

It is insisted by counsel for defendants that the grants under which complainant claims title, not being registered within two years from the date of the issuance of the same, are void under section 2779 of the Code of North Carolina, which reads as follows:

"The Secretary, on application of claimants, shall make out grants for all surveys returned to his office, which grants shall be authenticated by the Governor, countersigned by the Secretary and recorded in his office. The date of the entry shall be inserted in every grant, and no grant shall issue upon any survey, unless the same be signed by the surveyor of the county; and every person obtaining a grant for land shall, within two years after such grant shall be perfected as aforesaid, cause the same to be registered in the county where the land shall lie; and any person may cause to be there registered any certified copy of a grant from the office of the Secretary of State, which shall have the same effect as if the original had been registered. Upon certificate from the entry-taker, that the claimant has assigned his interest under the entry, a grant shall be issued in the name of the assignee: Provided, that the said assignee is a citizen and resident of this state, or shall have come into the state with the bona fide intent of becoming a resident and citizen thereof.".

There is nothing in the foregoing section which can be construed as authority for the contention that the failure to register a senior grant within two years from the date of the issuing of the same renders such grant void. However, this question has been passed upon recently by the Supreme Court of North Carolina. Judge Connor, in a very able and exhaustive opinion in the case of Janney v. Blackwell, 138 N. C. 439, 50 S. E. 857, among other things, in discussing this question, says:

"By making the entry as prescribed by law the enterer does not acquire any title to the land, but only a 'pre-emption' right, or, as it is sometimes called, an 'Inchoate equity,' or right to call for a grant upon compliance with the statute. The grant, when issued, relates to the entry, and vests the title in the grantee. The land, when granted, is no longer subject to entry as 'vacant and unappropriated lands.' Featherston v. Mills, 15 N. C. 596; Hoover v. Thomas, 61 N. C. 184; State v. Bevers, supra; Newton v. Brown, 134 N. C. 439, 46 S. E. 994. It follows, therefore, that, if one lay an entry upon and procure a grant for land covered by a grant, he acquires no title thereto, for the reason that the state has by the senior grant parfed with its title. Stanmire v. Powell, 35 N. C. 312. If the land be open to entry, and a grant be issued therefor, such grant may not be attacked collaterally for fraud, irregularity, or other cause. This can be done only by the state, or by pursuing the provisions of section 2786 of the Code. But, if the land be not subject to entry, the grant is void. and may be attacked collaterally. Prior to 1885 the statutes provided that all grants, deeds, etc., be registered in the county wherein the land was situated within two years from the date thereof. With one or two omissions, the Legislature uniformly extended the time for registration for two years. This court with equal uniformity held that such instruments, when registered within two years from their date or within the extended period, were good and valid for all purposes from their date by relation. Referring to grants, it was held in Hill v. Jackson, 31 N. C. 333, that 'the passage of the acts ** * prolonging the time within which grants shall be registered in the county has practically the effect of rendering nugatory that clause in them. * * The grants then may be registered at any time, if at that time there be any law authorizing the act. * ** If the registration of the grant was legal, then it must have the effect of relating back. This is a necessary consequence, and daily recognized in our practice.'

"The same doctrine prevailed in regard to deeds. Walker v. Coltraine, 41 N. C. 79; Phifer v. Barnhart, 88 N. C. 333. At the session of 1885 the Legislature enacted a statute which worked a radical change in regard to the registration of deeds. Chapter 147, p. 233, Laws 1885, declares that no deed," etc., shall be valid at law to pass any property as against creditors or purchasers for value, but from registration. No time was fixed within which such instruments were to be recorded. From that time it became unnecessary to pass the usual act extending the time for registration of deeds. The Legislature at that session and until 1893 failed to extend the time for registering grants. In Wyman v. Taylor, 124 N. C. 426, 32 S. E. 740, this court held that

chapter 147, p. 233, Laws 1885, did not apply to grants; hence from 1885 until 1893 there was no statute in force in this state authorizing the registration of grants after the expiration of two years from their date. By section 2779 of the Code they were required to be registered within two years. During the period between 1885 and 1893 there was no statute in force permitting the plaintiff to register the grant.

"By chapter 40, p. 52, Laws 1893, it was provided that grants theretofore made, which were required to be registered, 'may be registered in the counties in which the lands lie respectively at any time or times within two years from the first day of January, 1894, next ensuing, notwithstanding the fact that such specified times have already expired, and all such grants heretofore registered after the expiration of such specified time or times shall be taken and treated as if they had been registered within such specified time or times; provided that nothing herein contained shall be held or have the effect to divest any rights, titles, or equities, in or to the land covered by such grants, or any of them, acquired by any person or persons from the state of North Carolina, by or through any entry or entries, grant or grants made or issued since such grants were respectively issued, or of those claiming through or under such subsequent entry or entries, grant or grants.' The plaintiffs insist that the language of the proviso prevents the operation of the senior grant from relating back to its date, and gives the grant of 1876, under which they claim, priority. The question is thus presented: What 'right, title, or equity' did the grant of 1875 confer upon the grantee? As we have seen, the land at the time of the issuing of the grant was not subject to entry, and therefore the grantee acquired no right, title, or equity in the land as against the prior grantee. It is well settled that, where language is used in a statute which has a well-defined legal meaning, the Legislature will be presumed to have used the language with reference to such meaning. The plaintiff must therefore establish the proposition that he had some legal right or title to the land or some equity therein by virtue of his grant. is not to be doubted that the Legislature had the power to impose upon the persons registering their grants after the time provided therefor had expired the condition that they should do so, subject to junior grants which had been registered. The registration of a grant is not necessary to give it validity for the purpose of passing title. 24 A. & E. Enc. (2d Ed.) 116. It will be noted that there is a marked difference in the language of the statute requiring the registration of deeds (section .1245, and Acts 1885, p. 233, c. 147). and that requiring the registration of grants. The first declares that 'no deed shall be good and available,' where as the second directs that the grant be recorded.

It

We therefore conclude that, in view of the facts set out in the record, the plaintiff had not. at the time of the registration of the grant of 1848, acquired by the grant of 1875 any "right, title, or equity," as against the senior grant, which gave it priority. Neither grantee had actual possession of the land. The legal title vesting in the first grantee drew the constructive possession, which continued until there was an ouster. It appears that the plaintiff had never taken possession. Therefore the possession is, by operation of law, in the defendant by virtue of the senior grant. It may be suggested that the construction which we have placed upon the proviso of the act of 1893 practically emasculates it-gives it no operative force. If the defendant had gone into actual possession of the land, thereby ousting the senior grant, and remained in possession for seven years, he would have acquired title."

This opinion effectually disposes of the question sought to be raised by the defendants. It will be observed that the court in that case holds that junior grants are void in the absence of an actual adverse possession of the disputed premises for a period of seven years. While this court is of opinion that the act of 1893 is retrospective, and had the effect of validating any grants that were invalid by virtue of section 2779 of the Code at the same time the Supreme Court of North Caro

lina, in the case of Janney v. Blackwell, supra, has practically decided that the act of 1893 was not necessary for such purpose. In this instance, the complainant not only holds under senior grants, but has been in possession since 1899; while, on the other hand, the defendants hold under junior grants, and have never been in possession of the premises. Therefore the junior grants, under the circumstances, are absolutely void and of no effect. This question being settled by the Supreme Court of the state of North Carolina, and this suit being instituted in that state, such decision is binding on this court.

This practically disposes of all legal questions involved in this controversy, and leaves nothing but the question of location of the lands. in controversy. The court, after a careful consideration of all the evidence in this cause, is of opinion that the complainant is entitled to the relief prayed for in the bill, and will therefore enter a decree to that effect.

MORRILL et al. v. AMERICAN RESERVE BOND CO. OF
KENTUCKY et al.

(Circuit Court, W. D. Missouri, C. D. January 10, 1907.)
No. 2,307.

1. TRUSTS-ENFORCEMENT-EQUITY-JURISDICTION.

Every cestui que trust is entitled to the aid of a court of equity to avail himself of the benefit of the trust, and the forbearance of the trustee may not prejudice him.

2. COURTS JURISDICTION OF FEDERAL COURTS SUIT AGAINST STATE.

A suit against a state officer, which involves the pecuniary interest of the state to restrain or direct the action of the officer in a matter intrusted to his official discretion, is a suit against the state itself, of which the national courts have no jurisdiction, but a suit to enjoin or direct a state officer in the performance of an official act which requires the exercise of no discretion and involves no pecuniary interest of the state, and no violation of a positive statute thereof indicative of its public policy, is not a suit against a state, and any qualified citizen of another state may maintain such a suit in a federal court; and a suit of this nature may be maintained even when its determination involves the pecuniary interest of the state if the act of the officer is purely ministerial, or to restrain official action in pursuance of an unconstitutional statute, or without lawful authority, and to recover damages for such action.

[Ed. Note. For cases in point, see Cent. Dig. vol. 13, Courts, § 8442. Federal jurisdiction of suits against state, see note to Tindall v. Wesley, 13 C. C. A. 165.]

3. SAME.

Where corporations were required by a state statute to deposit securities with the State Treasurer to insure performance of their contracts, and the corporations have become insolvent, a suit by creditors entitled to the benefit of the securities to require the State Treasurer to turn the same over to receivers, to be disposed of for the benefit of complainants and all others entitled to share therein, is not a suit against the state, and for that reason without the jurisdiction of a federal court.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 13, Courts, § 844%.] 4. CORPORATIONS-INSOLVENCY OF BOND COMPANY-REMEDY OF CREDITOR UNDER MISSOURI STATUTE.

Act Mo. April 21, 1893 (Laws 1893, p. 121), requires bond investment companies selling bonds, certificates, or debentures on the installment or partial-payment plan to deposit securities with the State Treasurer for 151 F.-20